Justia International Trade Opinion Summaries

In its ninth administrative review of its antidumping order regarding certain steel nails from China, the Department of Commerce relied on adverse facts available (AFA) in calculating antidumping rates for two mandatory respondents. For Shandong, Commerce relied on total AFA to compute a rate of 118.04% because Shandong did not cooperate at all with Commerce’s investigation. For Dezhou, Commerce relied on partial AFA to compute a rate of 69.99% because it found that Dezhou’s supplier engaged in a fraudulent transshipment scheme and that this misconduct was attributable to Dezhou. Commerce then used those AFA-based rates to compute its all-others rate (the rate applied to all exporters of the subject merchandise who requested a separate rate but whom Commerce did not select as mandatory respondents).The Trade Court and Federal Circuit affirmed. During an initial investigation, Commerce must generally set the all-others rate equal to the weighted average of the mandatory respondents’ individual dumping margins, excluding any margins determined entirely on AFA, 19 U.S.C. 1673d(c)(5)(A); no such provision exists concerning administrative reviews. Commerce acted reasonably in adopting a new sampling methodology because it found that smaller exporters were behaving differently than larger exporters and that AFA-based margins yield an all-others rate representative of the exporters as a whole. View "Shanxi Hairui Trade Co., Ltd. v. United States" on Justia Law

Lam began working at Springs as its senior manager of global trade in 2019. She learned that three of Springs’s manufacturing facilities in Mexico were inaccurately tracking import and export inventories because computer systems were not properly integrated. While attempting to resolve the issue, Lam came to believe that a product Springs imported (cellular fabric blankets) originated in China and not, as the supplier insisted, in Taiwan and Malaysia. Fabrics originating in China were subject to a 25 percent tariff. She claims that she repeatedly stated that the company would need to pay higher tariffs, was “angrily berated,” and was told to continue classifying the fabrics as Taiwanese and Malaysian. She was placed on a performance improvement plan that cited her failure to adequately address the inventory problem, her failure to supplement tariff concerns with a “risk assessment,” a “solution,” or a “process change,” her reliance on outside consultants; and her inability to communicate concisely.Law was ultimately fired and sued, alleging that Springs retaliated against her, in violation of the False Claims Act, over her opinion that the company owed the 25 percent tariff, 31 U.S.C. 3730(h). The Seventh Circuit affirmed summary judgment in favor of Springs. Springs’s conduct falls short of “harassment” under section 3730(h)(1); Lam has not established a connection between the tariff violations she reported and the decision to fire her. View "Lam-Quang-Vinh v. Springs Window Fashions, LLC" on Justia Law

The Trade Expansion Act authorizes the President to adjust imports if he concurs with a determination by the U.S. Secretary of Commerce “that an article is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security” and to “determine the nature and duration” of the corrective action, 19 U.S.C. 1862(c)(1)(A). In a 2018 report, the Secretary determined that excessive steel imports threatened to impair national security. The President concurred and issued proclamations that imposed a 25 percent tariff on steel imports from several countries.The Court of International Trade rejected arguments that the President’s and Secretary’s finding of a threat to national security and the President’s imposition of a tariff for an indefinite duration conflicted with the statute. The Federal Circuit affirmed. While claims that the President’s actions violated the statutory authority delegated by section 1862 are reviewable, the President cannot be sued directly to challenge his threat determination. The Secretary’s threat determination is a reviewable final action, as a predicate to the President’s authority, but is reviewable only for compliance with the statute and not under the arbitrary and capricious standard. The court rejected an argument that the President failed to satisfy 1862(c)(1)(A)'s “nature and duration” requirement." View "USP Holdings, Inc. v. United States" on Justia Law

The second administrative review of an antidumping duty determination for large power transformers imported from the Republic of Korea, 19 U.S.C. 1675(a)(1)(b), was subject to four appeals to the Trade Court, with three remands to the Department of Commerce. The review concerned 19 U.S.C. 1677m(d), which requires Commerce to notify and permit a party to remedy or explain any deficiency in the information provided during an investigation. Commerce asserted that the statute did not apply and did not permit Hyundai to provide additional information relevant to Commerce’s change of methodology concerning normal value and sales price of service-related revenue. Commerce applied an adverse inference and partial facts available to increase the dumping margin.The Federal Circuit remanded for redetermination of the antidumping duty, based on the calculation of service-related revenue. Hyundai has the statutory right to correct the deficiencies that led to the application of adverse inferences and partial facts available. Before making adverse inference, Commerce must examine a respondent’s actions and assess the extent of the respondent’s abilities, efforts, and cooperation in responding to Commerce requests for information. The government does not assert that Hyundai withheld information, or committed any of the transgressions in section 1677e(a)(1) or (2) and relied on incomplete data to determine antidumping duties. View "Hitachi Energy USA, Inc. v. United States" on Justia Law

In parallel antidumping and countervailing duty investigations of quartz surface products from China, the Department of Commerce amended the scope of its investigations to prevent producers and exporters in China from evading its orders by using glass in place of quartz. Bruskin challenged Commerce’s authority to modify the scope of the investigation and to do so without a hearing. Bruskin also challenged the factual findings that led Commerce to modify the scope of its investigations.The Trade Court and Federal Circuit affirmed. Commerce has the discretion to set the scope of its investigations. Bruskin’s hearing request was untimely, and substantial evidence supports Commerce’s factual findings. View "M S International, Inc. v. United States" on Justia Law

The Department of Commerce issued an antidumping duty order covering steel nails from Taiwan. The Federal Circuit remanded for further explanation of one aspect of the methodology Commerce had adopted to determine whether there was “a pattern of export prices . . . that differ significantly among purchasers, regions, or periods of time,” 19 U.S.C. 1677f-1(d)(1)(B)(i), The court stated that Commerce did not adequately explain why it was reasonable to use simple averaging.On remand, Commerce again used simple averaging for its version of a “Cohen’s d denominator.” The Trade Court affirmed. The Federal Circuit vacated, finding that the relevant statistical literature cited by Commerce uniformly uses weighted averaging in the Cohen’s d denominator calculation and that Commerce has not explained why the basic choice of weighted averaging of unequal-size groups fails to apply to this context. The literature nowhere suggests simple averaging for unequal-size groups. When the entire population is known, the literature points toward using the standard deviation of the entire population as the denominator in Cohen’s d—which Commerce has not done. Commerce’s job is not to follow a statistical test as explained in published literature for its own sake, but to implement the statutory mandate to determine when prices of certain groups “differ significantly.” View "Mid Continent Steel & Wire, Inc. v. United States" on Justia Law

In 1996, the Commerce Department made a preliminary determination that tomatoes were being, or were likely to be, sold in the U.S. at less than fair value. Exporters of fresh tomatoes from Mexico signed an agreement to sell their products in the U.S. at minimum “reference” prices; Commerce suspended the investigation. In 2019, Commerce withdrew from the Agreement and resumed the investigation. A new agreement suspended the investigation, set higher minimum reference prices, and described the dumping margin. Domestic tomato producers asked Commerce to continue the investigation, which it did, as required by statute. Commerce reached a final determination and calculated estimated dumping margins. An antidumping duty order has not been issued because the 2019 Agreement remains in effect. Three companies challenged Commerce’s termination of the 2013 Agreement, its continuation of the investigation, and final determination.The Trade Court dismissed, finding that claims regarding the termination of the 2013 Agreement became moot upon the execution of the 2019 Agreement, and claims regarding the final determination in the continued investigation were not ripe because before an antidumping duty order.The Federal Circuit found no plausible challenge to the termination of the 2013 Agreement. Reversing in part, the court concluded that the challenge to the final determination is justiciable under Article III. The Tariff Act of 1930 provides jurisdiction for the Trade Court to review the final determination even before an antidumping duty order has been published. View "Bioparques de Occidente, S.A. de C.V. v. United States" on Justia Law

In 1996, the Department of Commerce issued a preliminary dumping determination concerning Mexican tomatoes. Mexican exporters entered into an agreement (19 U.S.C. 1673c(c)) that suspended the investigation, terminated the collection of cash deposits or bonds, and ended the suspension of liquidation of entries. A series of agreements followed; the 2013 agreement permitted either party to withdraw from the agreement at will. In 2018, U.S.-based tomato businesses and 48 members of Congress requested that Commerce terminate the 2013 agreement and resume the antidumping investigation. Commerce resumed its investigation and re-imposed cash deposit requirements. CAADES, an association of Mexican growers, negotiated a new suspension agreement. In October 2019, Commerce issued a final affirmative determination that increased the dumping margins over those reflected in a July 2019 preliminary determination. An antidumping duty order incorporating these new rates could not issue while the 2019 agreement remained in place; an order would issue immediately if any party withdrew, The Trade Court dismissed CAADES’s ensuing lawsuit. The Federal Circuit reversed in part, first finding that it had jurisdiction over CAADES’s challenges to the government’s termination of the 2013 agreement and to the 2019 agreement. Those claims are not moot. The 2013 agreement’s termination was not invalid for failing to comply with statutory termination requirements or because of allegedly improper political influence and the 2019 agreement is not invalid on grounds of duress. CAADES’s claims that the October 2019 final antidumping determination is invalid are not premature; the Trade Court has jurisdiction to hear those claims. View "Confederacion de Asociaciones Agricolas del Estado de Sinaloa, A.C. v. United States" on Justia Law

“Red Sun Farms” is the trade name under which various entities do business as “U.S. producers of fresh tomatoes grown in the United States, U.S. importers and resellers of fresh tomatoes from Mexico, and foreign producers and exporters of fresh tomatoes from Mexico.”Red Sun filed suit against the government based on an antidumping duty investigation to determine whether fresh Mexican tomatoes were being imported into the United States and sold at less than fair value. In its motion to dismiss, the government observed, with respect to the five identified entities doing business as “Red Sun Farms,” that “[i]t is unclear whether all of these parties possess standing or can be considered real parties in interest” and reserved its right to raise additional arguments on the subject. In a discovery filing, the government noted the varying singular/plural usage by Red Sun Farms and stated that “‘Plaintiff’ Red Sun Farms actually consists of several companies.”The Federal Circuit reversed the dismissal of the suit. Red Sun challenged the Department of Commerce’s Final Determination resulting from a continued investigation under 19 U.S.C. 1516a(a)(2)(B)(iv); although no final antidumping order had been issued, its claims are not premature. Jurisdiction exists based on 28 U.S.C. 1516a(g)(3)(A)(i) and 1516a(a)(2)(B)(i). View "Red Sun Farms v. United States" on Justia Law

StarKist produces two varieties of tuna salad products, albacore and chunk light, each of which is imported as ready-to-eat pouches or lunch-to-go kits. The fish is caught in South American or international waters, frozen, delivered to a facility in Ecuador, sorted, thawed, cooked, machine chopped, then hand-folded with a prepared mixture of other ingredients including a mayo base. The tuna salad products were classified by Customs under HSTUS subheading 1604.14.10, which carries a 35% ad valorem duty, and covers: Prepared or preserved fish; caviar and caviar substitutes prepared from fish eggs: Fish, whole or in pieces, but not minced: Tunas, skipjack and bonito: Tunas and skipjack: In airtight containers: In oil.StarKist sought classification under 1604.20.05, which covers “products containing meat of crustaceans, molluscs or other aquatic invertebrates; prepared meals,” and carries a 10% ad valorem duty. In the alternative, StarKist seeks a classification under either subheading 1604.14.22, which covers tuna that is “not minced” and “not in oil,” carrying a 6% ad valorem duty, or subheading 1604.14.30, which covers “other,” carrying a 12.5% ad valorem duty.Customs denied StarKist’s protests. The Trade Court granted summary judgment in favor of the government. The Federal Circuit affirmed. The products at issue are “not minced” and are “in oil.” View "StarKist Co. v. United States" on Justia Law